It’s worth noting that, although the death penalty is still technically legal in most states, actual executions are very rare in most of the country — even after a person has been sentenced to death row. According to a 2011 study by the Death Penalty Information Center, thirty-two U.S. jurisdictions executed no one in the previous five years and more than half of those jurisdictions executed no one after the Supreme Court permitted executions to continue in 1976. Only 12 states executed someone in 2010, and only 7 states executed more than one person.

The increasing rarity of the death penalty in most of the country not only reflects America’s evolution away from inhumane and irreversible criminal justice policy, it also has constitutional implications. The Constitution forbids “cruel and unusual punishments,” and the death penalty is increasingly unusual in the overwhelming majority of the nation. At the very least, Texas’ status as the outlier jurisdiction suggests that an Eighth Amendment solution may be necessary.

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